Reinterpreting Law's Silence: Examining the Interconnections between Legal Doctrine and the Rise of Immaterial Labour
| Date | 01 November 2020 |
| Author | EMILY ROSE |
| Published date | 01 November 2020 |
| DOI | http://doi.org/10.1111/jols.12260 |
JOURNAL OF LAW AND SOCIETY
VOLUME 47, NUMBER 4, NOVEMBER 2020
ISSN: 0263-323X, pp. 588–611
Reinterpreting Law’s Silence: Examining the
Interconnections between Legal Doctrine and the Rise of
Immaterial Labour
EMILY ROSE∗
Recent years have seen a rise in immaterial labour in the United
Kingdom and other developed economies. Sociological explanatory
accounts of these developments focus primarily on economic drivers.
Little, if any, inquiry has been made into the potential role of law. This
article seeks to identify the aspects of law that may be constitutive of
employer and worker perceptions of the acceptability (or otherwise)
of employer demands for immaterial labour. Two key contributions
are made. The first is a setting-out of a methodological approach to
exploring the constitutive effect of law that emphasizes the internal
operation of legal doctrine as critical to understanding its sociological
implications. The second is the development of substantive knowledge
on the potential role of law vis-à-vis the rise of immaterial labour.
I. INTRODUCTION
Sociological investigation in the United Kingdom (UK), as well as in other
developed economies such as the United States (US), has identified new
ways that employers are extracting value1from workers2in the post-Fordist
∗Law School, University of Strathclyde, Lord Hope Building, 141 St James
Road, Glasgow, G4 0LT, Scotland
emily.rose@strath.ac.uk
1 My reference to the term ‘value’ includes the Marxist conception of economic value
resulting from the exploitation of workers in the ‘hidden abode of production’. But it
extends this beyond the privileged site of the workplace to also include locations of
the reproduction of social life, referred to as the ‘new hidden abode of production’ in
the ‘new’ economy by B˝
ohm and Land (S. B˝
ohm and C. Land, ‘The New “Hidden
Abode”: Reflections on Value and Labour in the New Economy’ (2012) 62 The
Sociological Rev. 2). While scholars such as Fraser( N.Fraser, ‘Behind Marx’sHidden
Abode: For an Expanded Conception of Capitalism’ (2014) 86 New Left Rev. 55)
observe that social reproduction is a necessary background condition for capitalism,
B˝
ohm and Land emphasize it as a key site of competitive advantage and economic
productivity.
2 In the UK, Section 230(3) of the Employment Rights Act 1996 details the category
of ‘worker’, which includes ‘employees’ and other contracts for the personal
performance of work except as undertaken as part of an independent business.
588
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© 2020 The Authors. Journal of Law and Society published by John Wiley& Sons Ltd on behalf of Cardiff University (CU).
or ‘new’ economy. Terms such as ‘immaterial labour’,3‘emotional labour’,4
and ‘aesthetic labour’5are used in an attempt to capture these trends. At a
broad level, they reflect howaspects of the worker ‘self’ are increasingly being
drawn upon to add value to the good or service that is produced and sold.
There are various ways that this can playout in practice. For example, those
working in the knowledge and cultural industries are expected to imbue a
commodity or service with its informational and cultural content. There may
be expectations that workers are on top of the latest cultural trends – developed
in part due to their own interests and social activities – which are then drawn
upon and incorporated into their creative work, thus potentially increasing
the profit achieved from the output. For interactive service workers, it can
involve their being required to produce a particular aesthetic environment
through their body and clothing or a particular affect, such as ease, well-being,
excitement, or desire. The look and feel of many retail and service settings
now incorporate the physical and emotional efforts of workers in order to add
an additional layer of cultural meaning to the products or service being sold.
The effect is that the brand, and thus the potential for profit, is enhanced.
Even in sectors such as manufacturing, immaterial labour is said to play a
role, as it constitutes the paradigm for work organization.6This can be seen,
for example, in the way that cooperation and communication betweenworkers
is key to the successful operation of semi-autonomous work groups. Positive
and effective interaction between group members is relied upon to ensure
efficient and quality production practices.
An interesting aspect of these developments is that they appear to disrupt
the distinction – implicit within labour law but critical to its operation
– between the productive realm of paid work and the reproductive realm
of family, home, and leisure. The production/reproduction divide is both
dynamic and contentious. What we are seeing in this new iteration is the
productive sphere utilizing particular behaviours and socialities typically
associated with the reproductive realm.7In effect, employers are seeking to
achieve further value from workers byrequiring them as par t of their job roles
to reproduce or apply that associated with, developed in, and/or undertaken in
the reproductive realm.
3 M. Hardt and A. Negri, Empire (2000); M. Lazzarato, ‘General Intellect: Towards in
Inquiry into Immaterial Labour’, trans. E. Emery, updated P. Colilli, at <http://www.
geocities.ws/immateriallabour/lazzarato-immaterial-labour>.
4 A. Hochschild, ‘Emotion Work, Feeling Rules, and Social Structure’ (1979) 85 Am. J.
of Sociology 551; A. Hochschild, The Managed Heart: Commercializationof Human
Feelings (2003); A. K. Daniels, ‘InvisibleWork’ (1987) 34 Social Problems 403.
5 C. L. Williams and C. Connell, ‘“Looking Good and Sounding Right”: Aesthetic
Labor and Social Inequality in the Retail Industry’ (2010) 37 Work and Occupations
349.
6 Hardt and Negri, op. cit., n. 3.
7K.Weeks,The Problem with Work: Feminism, Marxism, Antiwork Politics, and
PostworkImaginaries (2011).
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© 2020 The Authors. Journal of Law and Society published by John Wiley& Sons Ltd on behalf of Cardiff University(CU).
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